Dakovich v. City of Des Moines

• Decision Date: 02 May 1950
• Docket Number: No. 47561,47561
• Parties: DAKOVICH v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

Page 511

42 N.W.2d 511

241 Iowa 703

DAKOVICH v. CITY OF DES MOINES.

No. 47561.

Supreme Court of Iowa.

May 2, 1950.

Frank B. Hallagan, S. L. Harvey, and Frank D. Bianco, all of Des Moines, for appellant.

Raymond E. Hanke, of Des Moines, for appellee.

WENNERSTRUM, Justice.

Plaintiff sought in a law action to recover damages for claimed personal injuries received when the car in which she was riding struck an earth embankment and ditch on one of the streets of the defendant city. This condition had resulted from the digging of a ditch in the street in order to provide sewer and water connections for a nearby improvement. The trial court submitted the case to the jury which returned a verdict for $2500 in favor of plaintiff. The defendant filed motions in arrest of judgment, for judgment notwithstanding the verdict and for a new trial, all of which were overruled. The defendant has appealed.

The appellee was seated in the front seat of an automobile driven by Don Smith at the time of and immediately prior to the accident, which occurred about 8:45 P. M. on June 21, 1948. Albert Schmidt and Jean Jones were in the back seat. The car in which these parties were riding was proceeding down a hill on East 29th Street, which has a black top surface. It was stipulated that the speed limit for this street in the vincinity of the accident was 35 miles an hour. The driver of the car testified that he was traveling at the rate of 25 miles an hour at the time the automobile struck the embankment. He also stated that as he proceeded down the hill he had his foot off the accelerator and that the clutch and brake were not touched. He testified that when within about ten feet of the earth embankment he applied the brakes but struck the earn pile in the street and proceeded over the ditch and hit the pile of earth on the other side where the car stopped. At the time of the accident the automobile was traveling in the center of the street. This witness stated he never saw any lights near the ditch or the dirt embankment, that the headlights of the automobile were on all the time and that they lighted the road for a distance of 25 or 30 feet. He also stated that the windshield was clear and that the brakes of the automobile were functioning properly.

The appellee testified that just before they got to the dirt embankment she made an outcry. Albert Schmidt, one of the occupants of the automobile, stated he did not see any lighted flares when he got out of the car and that he touched one of them and it was cold. He also testified that later he saw a police officer try to light one of the flares and it would not light. Milenko Dakovich, a brother of the appellee, testified that he was at the scene of the accident shortly after it happened and that there were no lighted flares at that time.

A witness for the appellant, Forrest Daniels, a bus driver for the Des Moines Street Railway Company, testified that he had proceeded south along East 29th Street, passed the earth embankment about 8:20 P. M. and that he noticed a couple of flares on the west side and a lantern near the middle of the pile of earth. He also stated that about 8:35 P. M. on his return trip he passed on the east side of the excavation and noticed the lantern in the middle and two flares on the east side of the embankment. Another witness for the appellant, Jesse B. Smith, testified that shortly after 8:00 o'clock he and two men friends drove along the street whether the embankment was and that the flares were lighted. Raymond Telford, another witness for the appellant, and an occupant of the Jesse B. Smith automobile stated that he saw a lantern and two flares in the middle of the road at this same time. Robert J. Hagge, also an occupant in the last referred to automobile, stated that at the time the car passed the embankment he saw flares and lights burning on the pile of dirt but he did not know how many. A police officer, J. G. Horsburgh, testified that he arrived at the scene of the accident about 9:00 o'clock and saw one flare lighted on the southeast corner of the pile of dirt. A witness for the appellee, Florence Rodgers, testified that she got off a bus near the scene of the accident about 8:35 P. M. and that there were no lighted flares.

Ralph Darrah, an employee of the company installing the sewer and water connections, testified that he went to the point where this improvement was being made shortly after 7:00 o'clock on the evening of the accident and that he put lighted flares on each corner of the ditch and a lighted lantern on the middle of the dirt pile on the south side of the excavation. He further testified that on the north side of this opening the earth was about 2 1/2 or 3 feet high and about 3 or 3 1/2 feet wide at the bottom and was about 11 feet long. On the south side of the ditch the earth was about 7 1/2 feet wide at the base and tapered up to about 4 feet wide at the top and was 11 feet long and about 5 feet high. He stated that the lantern was about 5 feet up in the center of the pile of earth. He also testified that after returning home he was called and told to go out and again light the lantern and flares and that he did not find the lantern until the next day when he discovered it 150 feet down the hill. He further stated that the dirt pile was leveled down flat and that the earth was scattered for about 40 or 50 feet.

The extent of the injuries to the appellee was shown by the testimony of an osteopathic physician and surgeon. He stated she had a wound on the right side of her forehead near the temple which necessitated six sutures to close, that she had an injury to the cartilage in the inside of her left knee, one of her ankles was sprained and that she had a shoulder injury on her left side. He testified that she would recover from her ankle and shoulder injuries but there was a cartilage displaced in the knee. It was his testimony that there was only one cure for that injury and that would be by surgery to remove the cartilage but that he did not like to have this done unless it was necessary. He also testified it was difficult to observe the scar on appellee's forehead and that she was making satisfactory progress in her recovery. It is shown that X-ray pictures were taken which disclosed there were no skull or other fractures.

The appellee testified that when the car struck the earth embankment the right side of her forehead hit the windshield and that she was taken to the hospital where the cut on her forehead received attention. She testified that she did not sleep well the night of the accident, that her knee was sore and she had a pain in her back, that she could not sleep well for several days after the accident, that she was sore and dizzy and that her back bothered her when she tried to work three weeks later. She stated that she worked about two weeks during which time her head ached, that she suffered dizziness, that her back and knee bothered her and that she suffered fatigue. It was also stated that up to the time of the trial her head pained her, that she could not keep up her housework for three rooms and that she had continued under the care of her physician.

I. The appellant asserts that the court committed error in its refusal to hold that the appellee was guilty of contributory negligence as a matter of law and to consequently sustain the appellant's motion for a directed verdict and subsequent motions based, in part, on the same ground. It is also claimed that the court erred in failing to hold as a matter of law that the appellant city was free from negligence and that its negligence, if any, was not the proximate cause of the appellee's injury. It is contended that the appellee failed to sustain her burden of proof as shown by the variance between the allegations of appellee's petition and the proof presented. We shall consider these two claimed errors jointly.

It is the claim of the appellant city that the testimony of the driver of the automobile shows that he must have been traveling at a rate of speed of approximately 60 miles an hour. The basis for this contention is that this witness stated he drove a distance of three miles in five minutes and that he had stopped at an intervening point for a period of at least two minutes. It is further contended that if other testimony of the driver is considered to the effect that the car had been traveling at a speed of 25 miles an hour and had covered the distance of three miles in five minutes that consequently it would have been traveling at least 36 miles an hour which would be in violation of the speed limit of 35 miles fixed for the particular street on which the accident occurred.

Our attention is called to Section 321.285, 1946 Code, I.C.A., which is a speed restriction statute. It, in part, provides that '* * * no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead, such driver having the right to assume, however, that all persons using said highway will observe the law.' Another statute which the appellant contends is applicable to the facts in the instant case is Section 321.297, 1946 Code, I.C.A., which is as follows: 'The operator of a motor vehicle, in cities and towns, shall at all times travel on the right-hand side of the center of the street.'

There is no direct proof that the driver of the car in which the appellee was an occupant was traveling at the rate of 60 miles an hour. This conclusion on the part of the appellant is deduced because of the claimed time that was required to travel a certain distance. On the other hand the driver of the automobile involved in...